Whether there is a unitary and coherent doctrine that can be referred to as the ‘actus reus requirement’ is the topic of this chapter. Two worries about this doctrine are examined and allayed. One is ...
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Whether there is a unitary and coherent doctrine that can be referred to as the ‘actus reus requirement’ is the topic of this chapter. Two worries about this doctrine are examined and allayed. One is that actus reus cannot be distinguished from other elements of liability such as mens rea, causation, or absence of justification or excuse. The other is that there is no reality to the kinds of actions criminal statutes prohibit so that what such statutes prohibit is indeterminate.Less

The Doctrinal Basis of the Actus Reus Requirement

Michael S. Moore

Published in print: 2010-08-05

Whether there is a unitary and coherent doctrine that can be referred to as the ‘actus reus requirement’ is the topic of this chapter. Two worries about this doctrine are examined and allayed. One is that actus reus cannot be distinguished from other elements of liability such as mens rea, causation, or absence of justification or excuse. The other is that there is no reality to the kinds of actions criminal statutes prohibit so that what such statutes prohibit is indeterminate.

This chapter develops from legal retributivism an account of the culpable action requirement of criminal liability and elaborates the implications of that account for perennial problems in criminal ...
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This chapter develops from legal retributivism an account of the culpable action requirement of criminal liability and elaborates the implications of that account for perennial problems in criminal law theory: whether and to what extent criminal liability should extend to omissions, to inchoate criminal endeavours, and to statuses. The chapter criticizes the dominant Austinian view of the act requirement both for requiring bodily motion and for separating the concept of an actus reus from that of a culpable mind. It also criticizes the moral account of the act requirement as leading to punishment for inward vice. It argues that the act requirement is a requirement that the accused have externalized a culpable intention and that the kind of externalization required for liability is a public manifestation of a choice to which a right-denial may be imputed. This account of the act requirement permits the reclamation of inchoate offences from a regime for the management of human threats to a law of punishment for free agents.Less

Culpable Action

Alan Brudner

Published in print: 2009-07-16

This chapter develops from legal retributivism an account of the culpable action requirement of criminal liability and elaborates the implications of that account for perennial problems in criminal law theory: whether and to what extent criminal liability should extend to omissions, to inchoate criminal endeavours, and to statuses. The chapter criticizes the dominant Austinian view of the act requirement both for requiring bodily motion and for separating the concept of an actus reus from that of a culpable mind. It also criticizes the moral account of the act requirement as leading to punishment for inward vice. It argues that the act requirement is a requirement that the accused have externalized a culpable intention and that the kind of externalization required for liability is a public manifestation of a choice to which a right-denial may be imputed. This account of the act requirement permits the reclamation of inchoate offences from a regime for the management of human threats to a law of punishment for free agents.

The most basic organising distinction of offence requirements in current law has been the actus reus-mens rea distinction. This chapter specifically starts by exploring the weaknesses of and the ...
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The most basic organising distinction of offence requirements in current law has been the actus reus-mens rea distinction. This chapter specifically starts by exploring the weaknesses of and the potential for confusion in the use of that distinction. It also recommends that use of the distinction be abandoned. It then offers as a replacement an alternative three-part conceptualisation of offence requirements, distinguishing what it calls objective, culpability, and act — omission requirements. Each of these three groups of doctrines is then examined. The current conceptualisation of each is summarised and refinements of it suggested. The actus reus-mens rea distinction reflects no discernible underlying concept; neither ‘actus reus’ requirements nor ‘mens rea’ requirements share a common characteristic or function. Moreover, it argues that current conceptualisation is flawed in two respects.Less

Offence Requirements

Paul H. Robinson

Published in print: 1997-09-18

The most basic organising distinction of offence requirements in current law has been the actus reus-mens rea distinction. This chapter specifically starts by exploring the weaknesses of and the potential for confusion in the use of that distinction. It also recommends that use of the distinction be abandoned. It then offers as a replacement an alternative three-part conceptualisation of offence requirements, distinguishing what it calls objective, culpability, and act — omission requirements. Each of these three groups of doctrines is then examined. The current conceptualisation of each is summarised and refinements of it suggested. The actus reus-mens rea distinction reflects no discernible underlying concept; neither ‘actus reus’ requirements nor ‘mens rea’ requirements share a common characteristic or function. Moreover, it argues that current conceptualisation is flawed in two respects.

Many criminal lawyers, judges, and professors see the distinction between actus reus and mens rea as one of the more basic of criminal law. Along with the offence-defence distinction, it helps us ...
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Many criminal lawyers, judges, and professors see the distinction between actus reus and mens rea as one of the more basic of criminal law. Along with the offence-defence distinction, it helps us organize the way we conceptualize and analyse liability. It is said to be ‘the corner-stone of discussion on the nature of criminal liability’. And, the concepts of actus reus and mens rea have ‘justified themselves by their usefulness’. This chapter argues that this most basic organizing distinction is not coherent. Rather than being useful to criminal-law theory, it is harmful because it creates ambiguity in discourse and hides important doctrinal differences of which criminal law should take account. It suggests that we abandon the distinction in favour of other conceptualizations.Less

Should the Criminal Law Abandon the Actus Reus-Mens Rea Distinction?

PAUL H. ROBINSON

Published in print: 1993-12-30

Many criminal lawyers, judges, and professors see the distinction between actus reus and mens rea as one of the more basic of criminal law. Along with the offence-defence distinction, it helps us organize the way we conceptualize and analyse liability. It is said to be ‘the corner-stone of discussion on the nature of criminal liability’. And, the concepts of actus reus and mens rea have ‘justified themselves by their usefulness’. This chapter argues that this most basic organizing distinction is not coherent. Rather than being useful to criminal-law theory, it is harmful because it creates ambiguity in discourse and hides important doctrinal differences of which criminal law should take account. It suggests that we abandon the distinction in favour of other conceptualizations.

In ordinary speech and in criminal codes the descriptions of types of action are seemingly quite diverse, as are the possible taxonomical schemes for classifying them. Yet Anglo-American criminal law ...
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In ordinary speech and in criminal codes the descriptions of types of action are seemingly quite diverse, as are the possible taxonomical schemes for classifying them. Yet Anglo-American criminal law reduces all possible modes of complexity to two dimensions: act types are either causally complex or circumstantially complex, or both. Reasons are given to honour this reduction. How to draw the distinction between circumstances and results is also examined in light of the law's purposes for distinguishing these two species of complexity. Focus is then directed to causal complexity. The ‘equivalence thesis’ is advanced, a thesis holding that all action descriptions used in the criminal law (like ‘A hit B’) are equivalent to explicitly causal descriptions (such as ‘A caused contact on B’).Less

Unity in Complex Action Description and in the Actus Reus Requirement

Michael S. Moore

Published in print: 2010-08-05

In ordinary speech and in criminal codes the descriptions of types of action are seemingly quite diverse, as are the possible taxonomical schemes for classifying them. Yet Anglo-American criminal law reduces all possible modes of complexity to two dimensions: act types are either causally complex or circumstantially complex, or both. Reasons are given to honour this reduction. How to draw the distinction between circumstances and results is also examined in light of the law's purposes for distinguishing these two species of complexity. Focus is then directed to causal complexity. The ‘equivalence thesis’ is advanced, a thesis holding that all action descriptions used in the criminal law (like ‘A hit B’) are equivalent to explicitly causal descriptions (such as ‘A caused contact on B’).

The normative justifications for the actus reus requirement are usually gathered under one rubric, the so-called ‘principle of legality.’ ‘The’ principle is in reality an amalgam of nine legal ...
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The normative justifications for the actus reus requirement are usually gathered under one rubric, the so-called ‘principle of legality.’ ‘The’ principle is in reality an amalgam of nine legal doctrines overlappingly justified by four different values (fairness, equality, liberty, and democracy). These values collectively justify limiting punishments to acts clearly prescribed in advance by criminal legislation. They only provide a limited justification for why retributive justice is served by observing the formalities demanded by the principle.Less

The Normative Basis for the Actus Reus Requirement

Michael S. Moore

Published in print: 2010-08-05

The normative justifications for the actus reus requirement are usually gathered under one rubric, the so-called ‘principle of legality.’ ‘The’ principle is in reality an amalgam of nine legal doctrines overlappingly justified by four different values (fairness, equality, liberty, and democracy). These values collectively justify limiting punishments to acts clearly prescribed in advance by criminal legislation. They only provide a limited justification for why retributive justice is served by observing the formalities demanded by the principle.

This book seeks illumination of three aspects of Anglo-American criminal law by the philosophy of action. These are, first, the general requirement that an accused perform some voluntary act before ...
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This book seeks illumination of three aspects of Anglo-American criminal law by the philosophy of action. These are, first, the general requirement that an accused perform some voluntary act before he can be convicted of crime; second, that that voluntary act have the properties marking it as one of the kinds of acts prohibited by statute, what lawyers call the ‘actus reus’ of crimes; and third, the double jeopardy requirement that no one should be prosecuted or punished more than once for doing but one act instantiating but one offence. These three requirements are seen as part of the ‘general part’ of the criminal law, the part that applies to all crimes and that gives the criminal law a unified structure. As such they aid both the efficient drafting of a criminal code by the legislature and the application/interpretation of criminal codes by courts. The theory of action defended in the book – and from which illumination of the criminal law is sought – in a version of the family of theories known as causal theories of action. The thesis is that actions are those bodily movements caused by volitions when those volitions have those movements as their object, and nothing else. The criminal law's voluntary act requirement is then seen as the requirement that there be such an act. Omissions, states a person is in, thoughts, and involuntary bodily movements such as reflex reactions, are not acts by such a causal theory. The criminal law's actus reus requirement is seen as the requirement that a voluntary act must possess those causal or other properties definitive of the types of action prohibited by a criminal code. And the criminal law's double jeopardy requirements is seen as a conjunctive requirement: first, that no one be punished for the same kind of action, where the identity of act-types is governed by the kinds of acts morality makes wrong; unless the actor did that act more than once, where the identity of act-tokens is governed by the theory of action defended throughout the book. The philosophy of action illuminates the criminal law in these three ways because of certain moral theses, which the book also defends; that criminal liability both does and should track moral responsibility; that moral responsibility exists principally for what we do rather than for who we are, what we think, or what we fail to prevent; that actions causing harms are more blameworthy than actions that only risk or attempt such harms; and that punishment should be in proposition to the number and degree of wrong(s) done.Less

Act and Crime : The Philosophy of Action and its Implications for Criminal Law

Michael S. Moore

Published in print: 2010-08-05

This book seeks illumination of three aspects of Anglo-American criminal law by the philosophy of action. These are, first, the general requirement that an accused perform some voluntary act before he can be convicted of crime; second, that that voluntary act have the properties marking it as one of the kinds of acts prohibited by statute, what lawyers call the ‘actus reus’ of crimes; and third, the double jeopardy requirement that no one should be prosecuted or punished more than once for doing but one act instantiating but one offence. These three requirements are seen as part of the ‘general part’ of the criminal law, the part that applies to all crimes and that gives the criminal law a unified structure. As such they aid both the efficient drafting of a criminal code by the legislature and the application/interpretation of criminal codes by courts. The theory of action defended in the book – and from which illumination of the criminal law is sought – in a version of the family of theories known as causal theories of action. The thesis is that actions are those bodily movements caused by volitions when those volitions have those movements as their object, and nothing else. The criminal law's voluntary act requirement is then seen as the requirement that there be such an act. Omissions, states a person is in, thoughts, and involuntary bodily movements such as reflex reactions, are not acts by such a causal theory. The criminal law's actus reus requirement is seen as the requirement that a voluntary act must possess those causal or other properties definitive of the types of action prohibited by a criminal code. And the criminal law's double jeopardy requirements is seen as a conjunctive requirement: first, that no one be punished for the same kind of action, where the identity of act-types is governed by the kinds of acts morality makes wrong; unless the actor did that act more than once, where the identity of act-tokens is governed by the theory of action defended throughout the book. The philosophy of action illuminates the criminal law in these three ways because of certain moral theses, which the book also defends; that criminal liability both does and should track moral responsibility; that moral responsibility exists principally for what we do rather than for who we are, what we think, or what we fail to prevent; that actions causing harms are more blameworthy than actions that only risk or attempt such harms; and that punishment should be in proposition to the number and degree of wrong(s) done.

There are six problems that threaten to make the criminal law unwieldy and complex: (1) that acts as such have no common nature; (2) that the types of acts criminal law prohibits are as diverse as ...
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There are six problems that threaten to make the criminal law unwieldy and complex: (1) that acts as such have no common nature; (2) that the types of acts criminal law prohibits are as diverse as the thousands of verbs of action that describe them; (3) that where and when a criminal act occurs varies with each kind of act; (4) that the mental state requirements are as diverse as are the types of actions such mental states are about; (5) that there is no general solution to the overlapping statutes problem (where more than one statute is violated by a single act); and (6) that there is no general solution to the unit of offense problem (where more than one act violates a single statute). The doctrines of voluntary act, actus reus, and double jeopardy all exist to provide general solutions to these worries. Various scepticisms about the coherence of these three doctrines are discussed.Less

Introduction

Michael S. Moore

Published in print: 2010-08-05

There are six problems that threaten to make the criminal law unwieldy and complex: (1) that acts as such have no common nature; (2) that the types of acts criminal law prohibits are as diverse as the thousands of verbs of action that describe them; (3) that where and when a criminal act occurs varies with each kind of act; (4) that the mental state requirements are as diverse as are the types of actions such mental states are about; (5) that there is no general solution to the overlapping statutes problem (where more than one statute is violated by a single act); and (6) that there is no general solution to the unit of offense problem (where more than one act violates a single statute). The doctrines of voluntary act, actus reus, and double jeopardy all exist to provide general solutions to these worries. Various scepticisms about the coherence of these three doctrines are discussed.

This chapter examines arguments about the use of neuroscience to inform three primary doctrinal categories for adjudicating guilt: actus reus, mens rea, and the insanity defense. For each category, ...
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This chapter examines arguments about the use of neuroscience to inform three primary doctrinal categories for adjudicating guilt: actus reus, mens rea, and the insanity defense. For each category, the chapter outlines the basic doctrinal requirements; explains the role of the mind in constituting and underlying this doctrine; and evaluates a variety of claims about how evidence about the brain can inform the doctrinal issues.Less

Criminal Law Doctrine

Michael S. PardoDennis Patterson

Published in print: 2013-11-12

This chapter examines arguments about the use of neuroscience to inform three primary doctrinal categories for adjudicating guilt: actus reus, mens rea, and the insanity defense. For each category, the chapter outlines the basic doctrinal requirements; explains the role of the mind in constituting and underlying this doctrine; and evaluates a variety of claims about how evidence about the brain can inform the doctrinal issues.

Philosophers conventionally distinguish between intentional actions and actions which are merely foreseen. The criminal law endorses that distinction, and applies a condition of unreasonableness ...
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Philosophers conventionally distinguish between intentional actions and actions which are merely foreseen. The criminal law endorses that distinction, and applies a condition of unreasonableness before any foreseen action is declared reckless. This chapter challenges the standard view that intention has moral primacy and suggests that the difference between intentional and advertent wrongdoing is not to be measured in degrees of culpability, but is instead worked out in terms of what actions may legitimately be invoked to justify wrongdoing. The central moral distinction between intended actions and those merely foreseen is that the foreseen do not lend any favourable weight to the justification of the intended. Before addressing the question of intrinsic moral distinctions, this chapter considers the possibility that there might also be instrumental reasons for the law to distinguish between intention and advertence. It examines A. Kenny's views on actus reus, intention, foresight, and the probability of harm, and John M. Finnis's arguments on incommensurability and justification as well as the moral distinctions between ends, means, and side-effects.Less

Why Distinguish Intention from Foresight?

A. P. Simester

Published in print: 1996-08-22

Philosophers conventionally distinguish between intentional actions and actions which are merely foreseen. The criminal law endorses that distinction, and applies a condition of unreasonableness before any foreseen action is declared reckless. This chapter challenges the standard view that intention has moral primacy and suggests that the difference between intentional and advertent wrongdoing is not to be measured in degrees of culpability, but is instead worked out in terms of what actions may legitimately be invoked to justify wrongdoing. The central moral distinction between intended actions and those merely foreseen is that the foreseen do not lend any favourable weight to the justification of the intended. Before addressing the question of intrinsic moral distinctions, this chapter considers the possibility that there might also be instrumental reasons for the law to distinguish between intention and advertence. It examines A. Kenny's views on actus reus, intention, foresight, and the probability of harm, and John M. Finnis's arguments on incommensurability and justification as well as the moral distinctions between ends, means, and side-effects.

Criminal law classically describes offences as being composed of two elements: the mens rea and the actus reus. The mens rea is the guilty mind and the actus reus is the guilty act. The words come ...
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Criminal law classically describes offences as being composed of two elements: the mens rea and the actus reus. The mens rea is the guilty mind and the actus reus is the guilty act. The words come from a Latin maxim that holds there to be no punishable act that is not the result of a guilty mind. It is not a crime merely to think guilty thoughts. Guilty thoughts must be linked to an act. An act that is not the result of a guilty mind is not a crime. Criminal justice systems occasionally recognize offences that may be committed in the absence of a guilty mind, although such crimes are very much the exception and they are rarely particularly serious. At the level of international criminal law, this low end of the intent spectrum rarely arises. The closest that international law comes to acts that are punishable without a guilty mind is the prosecution of commanders for the acts of their subordinates, when the superior ‘had reason to know’ that atrocities might be perpetrated by those under his or her control. The state policy issue remains one of the unresolved issues in the interpretation of both genocide and crimes against humanity. The ad hoc tribunals have made their position clear, declaring this to be excluded as an element of the crimes in question. To be entirely accurate, state policy has never really been an issue at either the International Criminal Tribunal for Rwanda, where the prosecutions have been confined to genocide charges associated with a brutal regime, or the Special Court for Sierra Leone, where the targets of prosecution were always senior leaders in the apparatus of the state or state-like rebel groups.Less

MENS REA, ACTUS REUS, AND THE ROLE OF THE STATE

William Schabas

Published in print: 2012-03-08

Criminal law classically describes offences as being composed of two elements: the mens rea and the actus reus. The mens rea is the guilty mind and the actus reus is the guilty act. The words come from a Latin maxim that holds there to be no punishable act that is not the result of a guilty mind. It is not a crime merely to think guilty thoughts. Guilty thoughts must be linked to an act. An act that is not the result of a guilty mind is not a crime. Criminal justice systems occasionally recognize offences that may be committed in the absence of a guilty mind, although such crimes are very much the exception and they are rarely particularly serious. At the level of international criminal law, this low end of the intent spectrum rarely arises. The closest that international law comes to acts that are punishable without a guilty mind is the prosecution of commanders for the acts of their subordinates, when the superior ‘had reason to know’ that atrocities might be perpetrated by those under his or her control. The state policy issue remains one of the unresolved issues in the interpretation of both genocide and crimes against humanity. The ad hoc tribunals have made their position clear, declaring this to be excluded as an element of the crimes in question. To be entirely accurate, state policy has never really been an issue at either the International Criminal Tribunal for Rwanda, where the prosecutions have been confined to genocide charges associated with a brutal regime, or the Special Court for Sierra Leone, where the targets of prosecution were always senior leaders in the apparatus of the state or state-like rebel groups.

This chapter examines the actus reus requirements in tort and criminal law. The essential thesis of the chapter is that our liability scheme in both areas of law is causation-drenched, and that this ...
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This chapter examines the actus reus requirements in tort and criminal law. The essential thesis of the chapter is that our liability scheme in both areas of law is causation-drenched, and that this is so irrespective of whether those liability doctrines use the word ‘cause’ explicitly or whether those doctrines use causative verbs of action like ‘hit’, ‘kill’, and ‘disfigure’. The chapter also argues that there are no so called ‘conduct-crimes’, crimes whose actus reus lack a causal element.Less

The Embedding of Causation in Legal Liability Doctrines

Michael S. Moore

Published in print: 2009-01-22

This chapter examines the actus reus requirements in tort and criminal law. The essential thesis of the chapter is that our liability scheme in both areas of law is causation-drenched, and that this is so irrespective of whether those liability doctrines use the word ‘cause’ explicitly or whether those doctrines use causative verbs of action like ‘hit’, ‘kill’, and ‘disfigure’. The chapter also argues that there are no so called ‘conduct-crimes’, crimes whose actus reus lack a causal element.

This chapter raises the question of how far some recent philosophy of action assists in explicating the moral psychological notions that are of concern in jurisprudence. The focus of the overall ...
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This chapter raises the question of how far some recent philosophy of action assists in explicating the moral psychological notions that are of concern in jurisprudence. The focus of the overall argument is on a distinction used by Antony Duff in his Intention, Agency and Criminal Liability — a distinction, Duff says, between ‘a broader and a narrower conception of intention’. It is doubtful that the distinction can do the work that Duff wants it to. Duff rests as much upon it as he does only because of a certain optimism: he hopes that conceptual analysis of intention may reveal what many of the interesting questions about mens rea really turn on, and so deliver the goods for the criminal lawyer. But this hope is vain. The chapter begins with some basic philosophy of action. A presentation of an account of actions which highlights some essential conceptual connections, and which introduces the concept of attempt into the framework, can provide a setting for a clear view of Duff's distinction. Exposition of this material takes up the first part of the chapter. This is brought into relation with issues in criminal liability in the second part, where its connection with the notions of actus reus and mens rea is shown. The third part explains and argues for the view taken of Duff's distinction, which differs from his. The remainder of the chapter considers how far an understanding of the concept of intention can take the criminal lawyer.Less

On What’s Intentionally Done

JENNIFER HORNSBY

Published in print: 1993-12-30

This chapter raises the question of how far some recent philosophy of action assists in explicating the moral psychological notions that are of concern in jurisprudence. The focus of the overall argument is on a distinction used by Antony Duff in his Intention, Agency and Criminal Liability — a distinction, Duff says, between ‘a broader and a narrower conception of intention’. It is doubtful that the distinction can do the work that Duff wants it to. Duff rests as much upon it as he does only because of a certain optimism: he hopes that conceptual analysis of intention may reveal what many of the interesting questions about mens rea really turn on, and so deliver the goods for the criminal lawyer. But this hope is vain. The chapter begins with some basic philosophy of action. A presentation of an account of actions which highlights some essential conceptual connections, and which introduces the concept of attempt into the framework, can provide a setting for a clear view of Duff's distinction. Exposition of this material takes up the first part of the chapter. This is brought into relation with issues in criminal liability in the second part, where its connection with the notions of actus reus and mens rea is shown. The third part explains and argues for the view taken of Duff's distinction, which differs from his. The remainder of the chapter considers how far an understanding of the concept of intention can take the criminal lawyer.

This chapter focuses upon the actus reus of genocide, outlining both the conduct elements of the offence and the complexities of identifying the contours of protected groups. It first discusses the ...
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This chapter focuses upon the actus reus of genocide, outlining both the conduct elements of the offence and the complexities of identifying the contours of protected groups. It first discusses the various modes of perpetration for international crimes generally, including the doctrines of command responsibility and joint criminal enterprise. It then focuses on the actus reus of genocide and details the acts prohibited under Genocide Convention that constitute physical genocide (killing group members, causing them serious bodily or mental harm, and imposing destructive conditions of life upon them) and biological genocide (preventing births within the group and removing the children of group members). It also discusses distinctions and commonalities among the racial, ethnic, national, and religious groups protected under the Genocide Convention. It further details the complexities of determining the applicable criteria for group membership and assesses the benefits and drawbacks of ascertaining membership using subjective versus objective characteristics.Less

Conduct Elements

Dr. David Nersessian

Published in print: 2010-07-29

This chapter focuses upon the actus reus of genocide, outlining both the conduct elements of the offence and the complexities of identifying the contours of protected groups. It first discusses the various modes of perpetration for international crimes generally, including the doctrines of command responsibility and joint criminal enterprise. It then focuses on the actus reus of genocide and details the acts prohibited under Genocide Convention that constitute physical genocide (killing group members, causing them serious bodily or mental harm, and imposing destructive conditions of life upon them) and biological genocide (preventing births within the group and removing the children of group members). It also discusses distinctions and commonalities among the racial, ethnic, national, and religious groups protected under the Genocide Convention. It further details the complexities of determining the applicable criteria for group membership and assesses the benefits and drawbacks of ascertaining membership using subjective versus objective characteristics.

Strict liability is a controversial phenomenon in the criminal law because of its potential to convict blameless persons. Offences are said to impose strict liability when, in relation to one or more ...
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Strict liability is a controversial phenomenon in the criminal law because of its potential to convict blameless persons. Offences are said to impose strict liability when, in relation to one or more elements of the actus reus, there is no need for the prosecution to prove a corresponding mens rea or fault element. For example, in the 1986 case of Storkwain, the defendant chemists were convicted of selling controlled medicines without prescription simply upon proof that they had in fact done so. It was irrelevant that they neither knew nor had reason to suspect that the ‘prescriptions’ they fulfilled were forgeries. Thus strict liability offences have the potential to generate criminal convictions of persons who are morally innocent. This book is a collection of contributions offering a consideration of the problem of strict liability in the criminal law. The chapters, including European and Anglo-American perspectives, provide an examination of the fundamental issues. They explore the definition of strict liability; the relationship between strict liability and blame, and its implications for the requirement for culpability in criminal law; the relevance of European and human rights jurisprudence; and the interaction between substantive rules of strict liability and evidential presumptions.Less

Appraising Strict Liability

Published in print: 2005-04-07

Strict liability is a controversial phenomenon in the criminal law because of its potential to convict blameless persons. Offences are said to impose strict liability when, in relation to one or more elements of the actus reus, there is no need for the prosecution to prove a corresponding mens rea or fault element. For example, in the 1986 case of Storkwain, the defendant chemists were convicted of selling controlled medicines without prescription simply upon proof that they had in fact done so. It was irrelevant that they neither knew nor had reason to suspect that the ‘prescriptions’ they fulfilled were forgeries. Thus strict liability offences have the potential to generate criminal convictions of persons who are morally innocent. This book is a collection of contributions offering a consideration of the problem of strict liability in the criminal law. The chapters, including European and Anglo-American perspectives, provide an examination of the fundamental issues. They explore the definition of strict liability; the relationship between strict liability and blame, and its implications for the requirement for culpability in criminal law; the relevance of European and human rights jurisprudence; and the interaction between substantive rules of strict liability and evidential presumptions.

This final chapter criticises the crime’s definition, its use by the prosecution in place of other, more apposite offences, and the diverse range of wrong-doing which has been subsumed in this one ...
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This final chapter criticises the crime’s definition, its use by the prosecution in place of other, more apposite offences, and the diverse range of wrong-doing which has been subsumed in this one crime. Despite the fact that the appeal court has redefined its actus reus in recent years, it is suggested that the uncertainty that surrounds its definition, particularly in relation to its mens rea, as well as its broad application, is such that breach of the peace should be reformed and restated by statute.Less

A Critique

Pamela R Ferguson

Published in print: 2013-07-15

This final chapter criticises the crime’s definition, its use by the prosecution in place of other, more apposite offences, and the diverse range of wrong-doing which has been subsumed in this one crime. Despite the fact that the appeal court has redefined its actus reus in recent years, it is suggested that the uncertainty that surrounds its definition, particularly in relation to its mens rea, as well as its broad application, is such that breach of the peace should be reformed and restated by statute.

This paper develops an account of core criminal terms like ‘murder’ that parallels Williamson’s account of knowledge. It is argued that while murder requires that the murderer killed, and that they ...
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This paper develops an account of core criminal terms like ‘murder’ that parallels Williamson’s account of knowledge. It is argued that while murder requires that the murderer killed, and that they did so with a certain state of mind, murder cannot be regarded as the conjunction of these two elements (the action, the actus reus, and the associated mental element, the mens rea). Rather, murder should be seen as a primitive notion, which entails each of them. This explains some of the problems around criminal attempt. Attempted murder cannot be seen simply as involving the state of mind of murder minus success; rather, it has to be seen as a self-standing offence, that of attempting to commit the murder.Less

Crime as Prime

Richard Holton

Published in print: 2018-09-27

This paper develops an account of core criminal terms like ‘murder’ that parallels Williamson’s account of knowledge. It is argued that while murder requires that the murderer killed, and that they did so with a certain state of mind, murder cannot be regarded as the conjunction of these two elements (the action, the actus reus, and the associated mental element, the mens rea). Rather, murder should be seen as a primitive notion, which entails each of them. This explains some of the problems around criminal attempt. Attempted murder cannot be seen simply as involving the state of mind of murder minus success; rather, it has to be seen as a self-standing offence, that of attempting to commit the murder.

In achieving a guilty finding in the Hong Kong legal system, both criminal intent or Mens Rea and the criminal act itself or Actus Reus have to be proven. It is important to note that the age ...
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In achieving a guilty finding in the Hong Kong legal system, both criminal intent or Mens Rea and the criminal act itself or Actus Reus have to be proven. It is important to note that the age considered to be mature enough to foster criminal intent, however, differs from country to country because of variations in social environment and culture. Today, the minimum age of criminal responsibility has shifted from seven to 10 as a result of recommendations made by the Bar Association of Hong Kong and the United Nations Committee on Children's Rights. As heated debates were stirred because of this issue, A Bill Committee on the Juvenile Offenders Bill 2001 was formulated in July 2002 so that the issue could be given further examination. After the final legislation was passed, the ordinance became law in July 2003.Less

Juvenile Justice Issues (1): The Age of Criminal Responsibility and the “Family Conference”

Francis Wing-lin Lee

Published in print: 2011-04-01

In achieving a guilty finding in the Hong Kong legal system, both criminal intent or Mens Rea and the criminal act itself or Actus Reus have to be proven. It is important to note that the age considered to be mature enough to foster criminal intent, however, differs from country to country because of variations in social environment and culture. Today, the minimum age of criminal responsibility has shifted from seven to 10 as a result of recommendations made by the Bar Association of Hong Kong and the United Nations Committee on Children's Rights. As heated debates were stirred because of this issue, A Bill Committee on the Juvenile Offenders Bill 2001 was formulated in July 2002 so that the issue could be given further examination. After the final legislation was passed, the ordinance became law in July 2003.

Because the word “genocide” is both used and overused, those first confronting its etymology are surprised to learn that it is of relatively recent origin. Throughout history, nations, tribes, or ...
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Because the word “genocide” is both used and overused, those first confronting its etymology are surprised to learn that it is of relatively recent origin. Throughout history, nations, tribes, or groups have been wiped out by other nations, tribes, or groups; however, the word “genocide” as a legal description for such events did not exist before the Second World War. The term arose directly out of the Holocaust, and coined in 1944 by one man, Raphael Lemkin. Lemkin, the inventor of the term and the father of the Genocide Convention, was a Jewish lawyer and legal scholar who fled Poland to the United States after Germany’s invasion of his native country. This chapter discusses “Lemkin’s word”, and how it became a crime under international law. The crime of genocide has acquired so much force that it is known today as the “crime of crimes” == although its notoriety has led to much overuse. The chapter also examines the propriety of labeling an historical event as “genocide” when it took place before the term was coined in 1944. Particular emphasis is placed on the Armenian genocide and the campaign to officially designate what happened to the Armenians in Ottoman Turkey as genocide.Less

Naming the CrimeGenocide

Michael Bazyler

Published in print: 2017-01-03

Because the word “genocide” is both used and overused, those first confronting its etymology are surprised to learn that it is of relatively recent origin. Throughout history, nations, tribes, or groups have been wiped out by other nations, tribes, or groups; however, the word “genocide” as a legal description for such events did not exist before the Second World War. The term arose directly out of the Holocaust, and coined in 1944 by one man, Raphael Lemkin. Lemkin, the inventor of the term and the father of the Genocide Convention, was a Jewish lawyer and legal scholar who fled Poland to the United States after Germany’s invasion of his native country. This chapter discusses “Lemkin’s word”, and how it became a crime under international law. The crime of genocide has acquired so much force that it is known today as the “crime of crimes” == although its notoriety has led to much overuse. The chapter also examines the propriety of labeling an historical event as “genocide” when it took place before the term was coined in 1944. Particular emphasis is placed on the Armenian genocide and the campaign to officially designate what happened to the Armenians in Ottoman Turkey as genocide.